Prosecuting conflict-related sexual violence in Colombia: opportunities and challenges

Crimes Against Humanity

by Lucie Canal

While the Colombian legal framework on conflict-related sexual violence has been considerably strengthened in recent years, significant challenges persist regarding its implementation: as of 2016, only 14 cases have led to convictions.

Progress in the prosecution of conflict-related sexual violence in Colombia

In the past 9 years, Colombian authorities have taken significant steps towards ensuring that survivors of both peacetime and conflict-related sexual violence crimes have greater access to justice and towards holding perpetrators accountable. For instance, Law 1257 was adopted in 2008 to establish an effective framework for the protection of women from violence in both private and public realms and to support the implementation of adequate public policies. Similarly, Law 1719 of 2014 aims to improve access to justice for survivors of conflict-related sexual violence. Most recently, Law 1761 was enacted in 2015 as to tackle femicide.

The Constitutional Court has played an important role in promoting the prosecution of conflict-related sexual violence. Following Decision T-025, the Court compiled a list of cases in Confidential Annexes of Auto 092 of 2008 and Auto 009 of 2015 and compelled the national authorities to prosecute them. Consequently, the Attorney General’s Office (FGN) created in 2015 the ‘Articulation Subcommittee’ (‘Subcomité de Articulacion de la estrategia de priorizacion para la investigacion y la judicializacion de violencia sexual en el marco del conflicto armado’), in order to streamline and promote well-defined strategies for the prioritisation and prosecution of conflict-related sexual violence cases and to provide guidance on international standards of due diligence in their prosecution.

Challenges in the prosecution of conflict-related sexual violence in Colombia

While the Constitutional Court defined sexual violence against women as “a habitual, extensive, systematic, and invisible practice in the Colombian armed conflict”, accurate and precise data are still lacking. To date, there is no centralised, effective and comprehensive database to record crimes of sexual violence, their victims and perpetrators. High levels of under-reporting further hamper thorough and systematic mapping. Moreover, deep-rooted traditional gender norms and notions of masculinity have shaped the ways in which conflict-related sexual violence is addressed in Colombia. Despite acknowledgement among civil society actors, journalists and prosecutors of male survivors of sexual violence, official data regarding their victimisation is scarce. Similarly, the absence of an effective centralised system for the collection of information on the status of conflict-related sexual violence cases has had a considerable impact on the prosecution of these crimes in Colombia. Despite the Constitutional Court prioritising over 600 conflict-related sexual violence cases since 2008, the level of impunity remains particularly high.

Victims of sexual violence also face numerous obstacles in their quest for justice. In addition to the social stigma that continues to be associated with sexual offences, survivors who wish to come forward, often have to deal with a lengthy and complicated process. Bounced from one State institution to another, victims are continuously asked to repeat their story, which may cause re-victimisation and, importantly, contributes to the underreporting of sexual violence cases. Additionally, territorial inequalities in the provision of public services continue to have a considerable impact on victims’ ability to file a complaint, particularly with regard to those living in rural areas and regions most affected by the conflict. The so-called Family Commissions (‘Comisarías de Familia’) are often the sole structure to which survivors can turn, but do not always have the capacity to adequately meet victims’ legal expectations. Overall, the existing justice process can be particularly complex and confusing for victims of sexual violence: in practice, they have access to very limited information about their rights and the steps to follow.

Obstacles to the investigation and prosecution of conflict-related sexual violence stem from, and are aggravated by, the absence of inter-institutional cooperation. Recent efforts include the creation of inter-institutional committees, such as the FGN’s Articulation Subcommittee and the Inter-Institutional Technical Committee for the broadening and qualification of sexual violence victims’ access to justice. Nonetheless, the Colombian institutional framework features a number of different entities in charge of addressing conflict-related sexual violence, including the Inspector General’s Office, the Ombudsman’s Office and the Family Commissions. Defining the exact remit of this rather crowded stakeholder environment is a complex task that might inhibit the investigation and prosecution of conflict-related sexual violence.

Conflict-related sexual violence and the Special Jurisdiction for Peace

The forthcoming Special Jurisdiction for Peace, envisaged in the peace deal reached by the Colombian Government and the FARC in 2016 is also worth considering in the context of conflict-related sexual violence. It is envisaged that the Special Jurisdiction for Peace will have jurisdiction over members of the FARC, over State officials who committed crimes during and in pursuance of the armed conflict, as well as over persons accused of financing or collaborating with paramilitaries. Of relevance to conflict-related sexual violence, the Investigation Unit of the Special Jurisdiction shall create a special sexual violence investigation team. Furthermore, rape and other forms of sexual violence are to be excluded from amnesty and pardon measures. Finally, the peace agreement envisages psycho-social rehabilitation for survivors of sexual violence. It remains to be seen, however, how the Special Jurisdiction for Peace will implement these measures once it becomes operational.

Context of conflict-related sexual violence in Colombia

Torn between paramilitary groups, guerrillas and State security forces, Colombia has suffered intense violence for over 50 years: more than 260,000 people have been killed, 45,000 have disappeared and 6.9 million have been displaced. Rape and other forms of sexual violence are widespread and appear to have been perpetrated by all parties to the conflict, including as a means of exercising social and territorial control. For instance, paramilitary groups have been accused of engaging in kidnapping, raping and forcing into prostitution or killing women and girls in several regions of the country. Moreover, the Revolutionary Armed Forces of Colombia (FARC) are known to have implemented a policy of forced contraception and forced abortion for fighters in their ranks.

In order to fully understand the dynamics as well as the implications of conflict-related sexual violence in Colombia, any analysis should take into account the deep-rooted patriarchal system that has historically permeated Colombian society. Gender-based discrimination and violence against women are pervasive. According to a 2012 report by Small Arms Survey, Colombia has the tenth highest femicide rate in the world. These entrenched pre-existing gender inequalities have contributed to the rapid increase of conflict-related sexual violence across the territory and its commission within a broader context of gender-based violence: armed groups have imposed territorial limitations on women’s freedom of movement, enforced gender-based curfews and have strictly regulated women’s social conducts, including through the use of punishments. Furthermore, the LGBT community has become target of specific gender-motivated violence, ranging from threats to sexual assault and murder.

Colombian civil society has advocated the necessity to contextualise the commission of such crimes: conflict-related sexual violence does not occur in a vacuum and often feeds on, or contributes to, other patterns of abuse. For instance, certain types of sexual violence perpetrated by paramilitaries, such as child prostitution, have strong ties with organised crime. Against this backdrop, tackling impunity for sexual and gender-based violence crimes and ensuring victims’ access to justice is essential in order to convey the message that conflict-related gender-based violence is neither tolerated nor accepted.

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